Cooper v. Southern Ry. Co

• Decision Date: 19 September 1929
• Citation: 149 S.E. 444
• Court: Virginia Supreme Court
• Parties: COOPER. v. SOUTHERN RY. CO.

149 S.E. 444

COOPER.

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Sept 19, 1929.

Error to Circuit Court, Lee County.

Action by Bettie Cooper, as administratrix of the estate of Edward S. Blair, deceased, against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Vance S. King and R. E. L. Chumbley, both of Pennington Gap, for plaintiff in error.

Pennington & Cridlin, of Jonesville, and Thos. B. Gay, of Richmond, for defendant in error.

PRENTIS, C. J. This is an action against the Southern Railway Company, in which the plaintiff seeks to recover for the death of Edward S. Blair, alleging that it was caused by the negligence of the defendant.

Upon the first trial there was a verdict for the plaintiff, which the trial court set aside. Upon the second trial, the plaintiff offered no additional testimony, but relied upon that offered at the first trial, and there was a verdict and judgment in favor of the defendant, to which a writ of error has been allowed.

A number of questions as to the procedure have been raised by the defendant. One of them certainly is serious in character, but, as the judgment upon the merits in its favor is plainly right, we shall not discuss the procedure.

The errors assigned by the plaintiff are (1) that the court erred in setting aside the first verdict in her favor; and (2) in overruling her motion to set aside the second verdict in favor of the defendant. These assignments present the same question, and that is whether the evidence, which is identical on both trials, is sufficient to support a verdict in favor of the plaintiff.

It is claimed here that the first verdict should not have been set aside, because the evidence established the fact that Edward S. Blair was killed "on the highway crossing as a result of the defendant's negligent failure to sound the statutory signals." We cannot sustain this contention, because there is no evidence to support it.

(a) There is no evidence that Edward S. Blair was killed either on or at the crossing. He was killed apparently by a train which passed between 11 and 12 o'clock in the night. His severed body was found some distance away from the crossing, early on the following morning. He was seen by two witnesses on the highway about 100 yards from the crossing. Another witness, driving on the highway towards the crossing, saw a train approaching, stopped to let it pass, and saw "some fellow on the railroad track somewhere near the crossing." Immediately afterward, he said, in reply to this question:

"Q. Where was this fellow that you saw?

"A. I do not know; I could not say exactly who he was, was on about at the crossing somewhere."

That he (witness) was watching the train, not looking at the crossing, was watching the headlight of the train; that he did not see the man on the crossing, and does not know that he went on; that he was looking at the train, with nothing to prevent his seeing; and concludes his...